Schwartz v. City of Flint

CourtSupreme Court of Michigan
Citation426 Mich. 295,395 N.W.2d 678
Docket NumberDocket No. 70806,No. 3,3
PartiesJoseph SCHWARTZ and Lillian Schwartz, Plaintiffs-Appellants, v. The CITY OF FLINT, Defendant-Appellee, and Sherwin Palmer, et al., Intervening Defendants-Appellees. Calendar426 Mich. 295, 395 N.W.2d 678, 55 U.S.L.W. 2298
Decision Date28 October 1986

Page 678

395 N.W.2d 678
Joseph SCHWARTZ and Lillian Schwartz,
The CITY OF FLINT, Defendant-Appellee,
Sherwin Palmer, et al., Intervening Defendants-Appellees.
Docket No. 70806.
Calendar No. 3.
426 Mich. 295, 395 N.W.2d 678, 55 U.S.L.W. 2298
Supreme Court of Michigan.
Argued March 5, 1985.
Decided Oct. 28, 1986.

Page 679

[426 MICH 299] Levin, Levin, Garvett and Dill by Erwin B. Ellmann and Jay W. Tower, Southfield, for plaintiffs-appellants.

S. Olof Karlstrom, Dennis M. Haley, Donald H. Robertson, Flint, for defendant-appellee.

Stephen A. Bromberg, Gerald A. Fisher, James A. Ginn, Norman Hyman, Edward Barry Stulberg, Detroit, for amicus curiae.

Public Corporation Law Section State Bar of Michigan by Lawrence R. Ternan, Bloomfield Hills, for Public Corporation Law Section.

BRICKLEY, Justice.

We granted leave to appeal in this case to consider two questions. The first is whether Ed Zaagman, Inc. v. City of Kentwood, 406 Mich. 137, 277 N.W.2d 475 (1979), should be overruled or modified. The second is whether the declaratory judgment and order entered by the circuit judge pursuant to the Zaagman procedure, as affirmed and modified by the Court of Appeals, unconstitutionally deprived the plaintiff of his property without compensation or without due process of law. Because we answer the first question by overruling Zaagman, we do not find it necessary to reach the specifics of the second question, other than to hold that the relief granted in this case was improper for the same reasons that the Zaagman procedures are now rejected.

426 MICH 300


This case traces its origins to 1967, when the plaintiff, Joseph Schwartz, requested that the City of Flint rezone his property. After nearly fifteen years of litigation, the plaintiff's land remains undeveloped.

Schwartz owns a twenty-eight acre parcel of undeveloped land in the City of Flint. Immediately west of the Schwartz parcel is Thread Lake, part of which passes through the Schwartz parcel. Approximately eleven acres of the parcel, including most of the western boundary and all the northern boundary, are located within the one-hundred-year flood plain of Thread Lake and Thread Creek.

The property immediately north of the Schwartz parcel is owned by the city. The property immediately east is an eleven-acre parcel that, like the Schwartz parcel, is privately owned and undeveloped. Immediately south are several subdivided residential lots containing single-family homes on the north side of Woodslea Drive, which runs roughly east and west. These homes are on the northern edge of a large residential neighborhood.

At the time Schwartz purchased the parcel in 1966, it was zoned A-2, which permitted single-family homes with minimum lot sizes of 5,000 square feet. An outlot owned by the plaintiff provides access to the property. In 1967, Schwartz requested that the parcel be rezoned from A-2 to C-1, to permit construction of multiple-family garden apartments and townhouses. In 1971, after the city denied the request to rezone, Schwartz commenced this action, seeking a declaration that the A-2 classification was unconstitutional and an order requiring the issuance of a building permit for the proposed garden apartments and townhouses.

The judge, after an apparent settlement between [426 MICH 301] Schwartz and the city, declared the A-2 classification unconstitutional as applied to the Schwartz parcel. On the city's motion, however, the judgment was set aside, and several neighboring landowners were permitted to intervene. 1

The city subsequently rezoned the Schwartz parcel from A-2 to A-1, which permits single-family homes with minimum lot sizes of 10,000 square feet. 2 The judge

Page 680

sustained the A-1 classification. The Court of Appeals, one judge dissenting, reversed and held the A-1 classification unconstitutional as applied to the Schwartz parcel. Const.1963, art. 10, Sec. 2. Similarly, see U.S. Const., Am. V, applicable to the states under U.S. Const., Am. XIV, Chicago, B & Q R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897). It found that the ordinance was "taking from plaintiffs the use of their property without just compensation...." Schwartz v. Flint, 92 Mich.App. 495, 503, 285 N.W.2d 344 (1979).

Pursuant to the procedure set forth in Zaagman, 3 the Court of Appeals remanded the cause to the Flint City Council. The city, however, failed to [426 MICH 302] submit an amendatory ordinance or other proposal to the circuit court within the sixty-day period prescribed in Zaagman. 4

Consistent with paragraph (v) of the Zaagman procedure, 5 the judge received proposals from both parties and conducted an evidentiary hearing for the purpose of determining "the most equitable or 'midsatisfactory use' to be made" of the Schwartz parcel.

[426 MICH 303] The city's proposal suggested development of the parcel as a "community development project." 6 Under this proposal, garden apartments or townhouses might be constructed even in an A-1 zoning district;

Page 681

density restrictions would, however, limit the total number of residential units in the development project to twenty-five percent more than the number of detached single-family homes that could be constructed in the same area on minimum lots of 10,000 square feet. 7

Schwartz proposed the construction of 144 single-family townhouses, divided into several clusters of attached units. With regard to access to and from the development, it appears that Schwartz proposed directing traffic away from the large residential neighborhood to the south and westerly of the parcel. Schwartz indicated that it might be possible to obtain a right-of-way across an adjoining undeveloped parcel, leaving the outlot for emergency use only.

The order 8 entered by the judge did not adopt either the city's or Schwartz' proposal. The order [426 MICH 304] prescribed different uses for various "tiers" of the Schwartz parcel. The first tier, consisting of approximately 3.7 acres immediately north of the single-family homes on Woodslea Drive, was restricted to single-family homes under the A-1 zoning classification (10,000 square foot minimum lots). The second tier, consisting of approximately 1.15 acres immediately north of the first tier, was restricted to "duplexes." On the remaining property, Schwartz would be permitted to construct 120 or, depending on the flood plain level, 124 single-family attached townhouse units, provided that the total number of units on the entire parcel did not exceed 140.

The order also prohibited the use of the outlot as a means of access to and from the Schwartz parcel, and would require that Schwartz obtain a right-of-way over an adjoining privately owned parcel.

The Court of Appeals modified the judge's order to permit "detached single-family townhouses" as well as "duplexes" in the second tier of the parcel; the judge's order was affirmed in all other respects.[426 MICH 305] Schwartz v. City of Flint (After Remand), 120 Mich.App. 449, 329 N.W.2d 26 (1982). 9


After careful reconsideration of the procedures of Zaagman, supra, we conclude that that case should be overruled as an improper usurpation by the judiciary of a legislative function. In light of the extraordinary facts of this case and of the experience of the bench and bar, generally, under the Zaagman rule, we are replacing the Zaagman decision with a more judicially appropriate directive.

Page 682

Zaagman was a well-intentioned effort to utilize the court's equity powers to minimize the side effects of resolving lawsuits having obvious ramifications beyond the parties to the suit. However, neither the parties nor the amici curiae 10 in this case are entirely satisfied with the Zaagman procedure as it has been implemented to date.

The separation of powers provision of the Michigan Constitution reads:

"The powers of the government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution." Const.1963, art. 3, Sec. 2.

Our state system is modeled after the federal system. The United States Supreme Court described the separation of powers as follows:

[426 MICH 306] "The functions of government under our system are apportioned. To the legislative department has been committed the duty of making laws; to the executive the duty of executing them; and to the judiciary the duty of interpreting and applying them in cases properly brought before the courts. The general rule is that neither department may invade the province of the other and neither may control, direct or restrain the action of the other." Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923).

We, too, have emphasized:

"[I]n harmony with American political theory, the State government is divided into three historic departments, the legislative, the executive, and judicial....

* * *

" 'This historical and constitutional division of the powers of government forbids the extension, otherwise than by explicit language or necessary implication, of the powers of one department to another.' " Civil Service Comm. v. Auditor General, 302 Mich. 673, 683, 5 N.W.2d 536 (1942).

Option (v) of the Zaagman holding permits the court, under certain conditions,

"to conduct a hearing supplemented by the submission of proofs by all affected parties to determine and implement the most equitable or 'midsatisfactory use' to be made of plaintiff's parcel." Zaagman, supra, 406 Mich. p. 167, 277 N.W.2d 475 (emphasis added).

In addition, options (i) and (ii) require the "chancellor" to "order the implementation of such 'midsatisfactory' amendatory ordinance." Id., pp. 166-167, 277 N.W.2d 475.

These directives, in the words of Justice T.G. Kavanagh, amount to "judicial zoning." We agree [426 MICH 307] with some of his observations, made in dissent in...

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